Still up in the air - Editorial

In boxing terms, this week the Affordable Care Act saw a split
decision on questions about its implementation in federal appeals
courts.

Of course, even that sentence implies something was definitively decided.

For
those who missed the legal battles, on Tuesday the U.S. Court of
Appeals for the District of Columbia Circuit issued a 2-1 ruling stating
the federal government could not subsidize health insurance for
residents of states that do not use a state-run exchange. Their
reasoning was the language of the Affordable Care Act that said the
health care law authorized subsidies for health insurance bought
“through an exchange authorized by the state.”

The language seems
pretty succinct and self-explanatory on the surface. The ruling means
only the 14 states that set up their own heath insurance exchanges are
eligible for subsidies to participating residents.

However, the
Obama administration argued, unsuccessfully, the federal government was
acting in the place of the states when they created the federal health
insurance exchange. The judges did not buy this argument in the District
of Columbia.

However, in the Fourth Circuit in Richmond,
Virginia, appeals judges found just the opposite meaning only a few
hours later. In this case the majority opinion stated that although the
law did not implicitly state the federal exchanges were eligible for
subsidies, the Internal Revenue Service ruling was “a permissible
exercise of the agency’s discretion.”

In other words, the IRS can interpret the meaning of a law, even when the law does not say something.

As
is usual, this argument all comes down to money. In the 36 states that
do not have a locally run exchange, the vast majority of new sign-ups
for health insurance will not be able to afford the premiums without the
subsidies. A Silver Plan on average costs $345 per month in premiums.
With subsidies, however, participants pay only $69 per month. Ohio is
one of the states without a state exchange and estimates show premiums
costing an average between 58-69 percent more if the ruling stands. If
the majority of new sign-ups drop coverage due to rising costs, then the
whole system falls apart. The ACA is not solvent unless a large
majority of the U.S. population, including the young and healthy who
will pay disproportionately high premiums, are involved in the plans.
There just are not enough dollars otherwise.

In the end our
argument is not with the IRS grasping greedily for more power. That
situation appears to be the norm these days in Washington D.C., even
with certain branches of the federal government. Our problem is with the
ACA and the shoddy way it was written and passed. If the ACA was a good
law that needed to clarify whether or not federal exchanges were
eligible for subsidies, then Congress could pass a new law.

That,
however, will not happen. The vast majority of Republican legislators
are against the ACA and a large number of Democrat politicians - those
running for office this year - want nothing to do with a vote to “fix”
the ACA. Because if the law is reopened for changes, where does the list
stop? The employer mandate deadline? The Small Employer Health Option
Program deadline pushed back two years? The delay of the low income plan
by two years? The verification process for subsidies by the IRS?
Expanding the hardship waiver? A two-year extension for non-compliant
health care plans? In all, 42 major revisions or delays have occurred to
the Affordable Care Act since it was signed into law.

Instead,
the American public will be treated to several months of arguments as
the D.C. appeals court hears the case en banc (all 11 judges instead of
only three) and the ruling will most likely be overturned since seven
judges were Democrat appointees and four were Republican. That means the
appeals will continue and the final say will come down to the U.S.
Supreme Court sometime next year.